J. 

### S66040/18 NON-PRECEDENTIAL DECISION

## - SEE 

### SUPERIORCOURT

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA : INTHE SUPERIORCOURT OF PENNSYLVANIA v. TERRENCE BONNER, No. 3972 EDA 2017 

### Appellant Appeal

### fromthe PCRAOrder, December 11, 2017, in

### theCourtofCommon Pleas of Philadelphia County Criminal Division at No. 

### CP-51-CR-0015853-2008

BEFORE: GANTMAN, P.J., PANELLA, J.,AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: 

### FILEDJANUARY

### 07,

### 2019 Terrence Bonner appeals 

### from the December 11, 2017 

### order dismissing his 

### petition filed 

### pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 

### 9541-9546. Aftercareful review, we

### affirm. The 

### relevant facts of this case were summarized by a 

### prior panel of this 

### court on 

### direct appeal and need not be 

### reiterated in full here. 

### See 

### Commonwealth v. 

### Bonner, 27 A.3d 255, 

### 255-257 (Pa.Super. 

### 2011), 

### appeal denied, 40 A.3d 1233 (Pa. 

### 2012). In sum, in the early morning hours 

### of April 13, 2008, 

### appellant broke into 

### the home 

### of the 

### victims, N.P. 

### ("Husband") and M.M. 

### ("Wife"), robbed 

### them at 

### knifepoint, sexually assaulted 

### wife, and stole 

### their vehicle. On 

### September 25, 2009, a 

### jury found 

### appellant 

### guilty of burglary, robbery, robbery of a 

### motor vehicle,J. 

### S66040/18 possessing 

### instruments of crime, and indecent 

### assault' in connection 

### with this incident. Following his

### convictions,the

### trial courtsentenced 

### appellantto

an 

### aggregate 

### term of 13 to 26

### years' imprisonment on 

### November 20, 2009. 

### Appellantfiled a

### timely notice

### ofappeal on December9, 2009.2 On 

### August 17, 

### 2011, a panel of 

### this court affirmed appellant's 

### judgmentofsentence, and our supreme 

### courtdenied allowance ofappeal on March 13, 2012. 

### Id. Appellant did not seek review 

### with the United States Supreme Court. On April 9, 

### 2012, appellant filed a 

### timely 

### pro se PCRA 

### petition, and Michael L. Doyle, Esq. 

### ("Attorney Doyle"), was appointed to 

### represent him. On May 16, 2014, 

### Attorney Doyle filed an amended PCRA 

### petition on 

### appellant's behalf. 

### Attorney Doyle 

### subsequentlyleft the practice of law, and 

### appellant's 

### current counsel, Zak T. Goldstein, Esq. ("PCRA 

### counsel"), was appointed to 

### represent him. On May 5, 2017, PCRA counsel filed a second amended PCRA 

### petition on 

### appellant's behalf. On October 24, 2017, the Commonwealth filed a 

### motion to dismiss 

### appellant's second amended 

### petition. On November 13, 2017, the PCRA 

### court provided 

### appellant with notice of its 

### intention to dismiss his 

### petition 

### without a hearing, pursuant to Pa.R.Crim.P. 

### 907(1). Appellant did not file a response



### ' 18 Pa.C.S.A. §§ 

### 3502(a), 3701(a), 3702(a), 907(a), and 

### 3126(a), respectively.

2

### Appellantwas represented during his

### jurytrial by Peter L. Maas, Esq. 

### ("trial counsel"), and on 

### directappeal by Karl Baker, Esq. and Owen Larrabee, Esq. 

### (collectively, "appellate counsel"). 

### _2J. 

### S66040/18
to the PCRA

### court's Rule 907 notice. 

### Thereafter, on December 11, 2017, the PCRA 

### court dismissed 

### appellant's petition 

### without an 

### evidentiary hearing. This

### timely appealfollowed.3 

### Appellant raisesthefollowing issues

### forour review: I. 

### Whether the PCRA 

### Court erred in denying 

### [a]ppellant's [PCRA] Petition because 

### trial counsel was 

### ineffective in 

### failing to 

### object to the prosecution's closing 

### argumentabout crime in Philadelphia because the 

### argument was 

### unfairly prejudicial and calculated only to 

### inflamethe passions 

### ofthe

### jury[?] II. Whether the PCRA 

### Court erred in denying 

### [a]ppellant's [PCRA] Petition because 

### trial counsel was 

### ineffective in 

### failing to 

### object and 

### request a 

### mistrial or

### cautionary

### jury instruction when the Commonwealth presented 

### identification evidence and argued in closing 

### that the 

### complainants had successfully identified 

### [a]ppellant as the person who burglarized 

### their home 

### after the Commonwealth, in 

### order to 

### defeat a defense 

### motion 

### for a 

### pre-trial lineup, 

### stipulated at the 

### preliminary hearing 

### that the witnesses would never 

### identify 

### [a]ppellant as the person who burglarized

### their home[?] 

### III. Whether the PCRA 

### Court erred in denying 

### [a]ppellant's [PCRA] Petition where appellate counsel in 

### [a]ppellant's direct appeal was 

### ineffective in 

### failing to challenge 

### [a]ppellant's conviction based on the sufficiency of the evidence where the only evidence connecting 

### [a]ppellant to the crime was the presence of

3 The record reflects 

### that on December 12, 2017, the PCRA 

### court directed 

### appellant to file a concise 

### statement of 

### errors complained of on appeal, in accordance 

### with Pa.R.A.P. 

### 1925(b). Appellantfiled his 

### timely Rule 

### 1925(b) 

### statementon December 15, 2017, and the PCRA

### court filed its Rule 

### 1925(a) opinionon June 6, 2018. 

## -3J. 

### S66040/18
his 

### fingerprints on an 

### inherently movable 

### object which was taken during the crime 

### approximately halfan hourto an hour 

### later[?] Appellant's briefatvii

### -viii. Proper appellate review of a PCRA 

### court's dismissal 

### of a PCRA 

### petition is 

### limited to the 

### examination of

### "whether the PCRA 

### court's determination is supported bythe record and freeof legal

### error." 

### Commonwealth v.

### Miller, 102 A.3d 988, 992 (Pa.Super. 

### 2014) 

### (citation 

### omitted). "The PCRA 

### court's findings will not be 

### disturbed unless 

### there is no 

### supportfor the findings in the certified 

### record." 

### Commonwealth v. 

### Lawson, 90 A.3d 1, 4 (Pa.Super. 2014) 

### (citations

### omitted). "This Court 

### grantsgreat deferencetothefindings ofthe PCRA

### court, and wewill not 

### disturbthose

### findings merely because the record could 

### support a 

### contrary holding." 

### Commonwealth v. 

### Hickman, 799A.2d 136, 140 (Pa.Super. 

### 2002) 

### (citation 

### omitted). When the PCRA

### court denies a 

### petition

### without an 

### evidentiary hearing,

as is the case here, we 

### "examine each issue raised in 

### the PCRA 

### petition in 

### light ofthe record 

### certified before it in 

### orderto 

### determine ifthe PCRA 

### court erred in its

### determination 

### thatthere were no genuine issues of 

### materialfact in 

### controversy and in denying 

### relief 

### without conducting an 

### evidentiary hearing." 

### Commonwealth v. 

### Khalifah, 852 A.2d 1238, 1240 (Pa.Super. 

### 2004). This 

### court has long recognized 

### that there is no absolute 

### right to an 

### evidentiary hearing. 

### Commonwealth v. 

### Hart, 911 A.2d 939, 941 (Pa.Super. 

### 2006) 

### (citation 

### omitted). 

## "It is

### within the PCRA

### court's discretion


## -4J. 

### S66040/18
to decline to hold a hearing ifthe 

### petitioner's claim is 

### patentlyfrivolous and has no 

### support either in the record or 

### other evidence." 

### Commonwealth

v. 

### Wah,42 A.3d 335, 338 (Pa.Super. 

### 2012) 

### (citations

### omitted). Appellant's 

### first two claims concern the effectiveness of his 

### trial counsel. To prevail on a claim 

### of ineffective assistance 

### ofcounsel under the PCRA, a 

### petitioner must establish the following three factors: 

### "first[,] the underlying claim has arguable 

### merit; second, 

### thatcounsel had no reasonable basis 

### for his action or 

### inaction; and 

### third, 

### that Appellant was 

### prejudiced." 

### Commonwealth v. 

### Charleston, 94 A.3d 1012, 1020 (Pa.Super. 

### 2014) 

### (citation

### omitted),

### appealdenied, 104A.3d 523 (Pa. 

### 2014). [A] PCRA 

### petitioner will be granted 

### relief only when he proves, by a preponderance ofthe evidence,

### that his 

### conviction or sentence resulted 

### from the 

### [i]neffective assistance of counsel which, in 

### the circumstances ofthe 

### particular case, so 

### undermined the 

### truth-determining process 

### that no reliable 

### adjudication of 

### guilt or innocence could have taken place. 

### Commonwealthv. 

### Spotz, 84A.3d 294, 311 (Pa. 

### 2014) 

### (internalquotation marks 

### omitted; some brackets in 

### original), citing 42 Pa.C.S.A. §

### 9543(a)(2)(ii). "[C]ounsel is presumed to be 

### effective and the burden of 

### demonstrating ineffectiveness rests on 

### appellant." 

### Commonwealth v. 

### Ousley, 21 A.3d 1238, 1242 (Pa.Super. 

### 2011) 

### (citation 

### omitted), 

### appeal denied, 30 A.3d 487 (Pa. 

### 2011). Additionally, counsel is not 

### ineffectivefor



## -5J. 

### S66040/18 failing to raise a claim 

### that is devoid of 

### merit. 

### Commonwealth v. 

### Ligons, 971A.2d 1125, 1146 (Pa. 

### 2009). Appellant contends 

### that trial counsel was 

### ineffective for failing to 

### object to 

### comments the prosecutor made during her closing 

### argument 

### that referenced crime in Philadelphia. 

### (Appellant's brief at 

### 4.) Specifically, Assistant 

### District

### Attorney Allyson Busch ("ADA Busch") made the following comments during her closing 

### statement which 

### appellant now challenges on appeal: Now, the defense would likeyou to ask us

### for more, always more. More 

### prints from the house, more 

### work by the police, more 

### investigation

. . . . Ladies and 

### gentlemen as Itold you 

### from the beginning,this is real crime in Philadelphia. This is not CSI, it's not a TVshow. I

### don't get to

### write in 

### everything I wish I could possibly have in a case. 

### That's not 

### what the law requires. These are 

### detectives and police officers

### that have gone up 

### elevators with you

### just as you have 

### every day this week. 

### You've seen

### what crime is 

### like in 

### Philadelphia. You've seen

### what this Criminal Justice Center is. 

# It is a 

### shame 

### that our Crime Scene 

### Unit 

### can't go 

### to every single home 

### invasion 

### where a 

### knife has been 

### held

### to someone's

### throat. That we're so plagued by 

### other things 

### that they have to 

### stay busy 

### with. Thatourcops have 

### limited resources. But

### they did a heck

### of a lot in this case. They held the scene. They tried to 

### printthe housewhere 

### theythought 

### thatthey could possibly get prints. They lifted 

### prints

### that

### just were no good. Notesof

### testimony,

### 9/24/09 at 

### 149-150 (emphasisadded). 

### Appellant argues 

### that ADA Busch's 

### comments were 

### "prejudicial, inflammatory, and burden

### -shifting" and 

### that trial counsel's 

### failure to 

### object


## -6J. 

### S66040/18

on this basis

### entitles him to a new 

### trial. (Rule 

### 1925(b) statement, 

### 12/15/17 at ¶ 

### la;see

### also appellant's briefat

### vii, 6-7.) Wedisagree. 

### "Our standard of review 

### for a claim of 

### prosecutorial misconduct is limited to

### whetherthe

### trial courtabused its

### discretion." 

### Commonwealth v. 

### Harris, 884 A.2d 920, 927 (Pa.Super. 2005) 

### (citations 

### omitted), 

### appeal denied, 928 A.2d 1289 (Pa. 

### 2007). Not 

### every unwise 

### remark on a 

### prosecutor's part, however, constitutes reversible error. 

### Id. "Prosecutorial misconduct occurs when the effect of the prosecutor's comments would be to 

### prejudice the 

### trier of 

### fact, forming in its mind fixed bias and 

### hostility toward the defendant so

### that it could notweigh the evidence 

### objectivelyand 

### render a 

### true 

### verdict." 

### Commonwealth v. 

### Duffy, 832 A.2d 1132, 1137 (Pa.Super. 

### 2003),

### appealdenied, 845 A.2d 816 (Pa. 

### 2004). Counsel['s] remarks to the 

### jury may contain 

### fair deductions and 

### legitimate inferences 

### from the evidence presented during the 

### testimony. The 

### prosecutor may always argue to the 

### jury that the evidence establishes the 

### defendant's guilt, although a 

### prosecutormay not

### offer his personal opinion as to the 

### guilt of the accused 

### either in 

### argument or in 

### testimony from the witness stand. Nor may he or she express a personal 

### belief and opinion as to 

### the 

### truth or 

### falsity of evidence of 

### defendant's 

### guilt, including the 

### credibility of awitness. 

### Commonwealth v. 

### Chmiel, 777 A.2d 

### 459, 466 (Pa.Super. 

### 2001), 

### appeal denied, 788A.2d 372 (Pa. 

### 2001), 

### cert.denied, 535 U.S. 1059 

### (2002). Following our careful review, we agree 

### with the PCRA 

### court 

### that ADA Busch's

### comments, when read as a whole,were not so 

### prejudicial asto


## -7J. 

### S66040/18 warrant 

### that a new 

### trial be 

### granted. "A 

### petitioner establishes prejudice when he 

### demonstrates 

### that there is a reasonable 

### probability that, but 

### for counsel's 

### unprofessional errors, the result of the proceeding would have been 

### different." 

### Commonwealth v. 

### Johnson, 966 A.2d 523, 533 (Pa. 2009) 

### (citations and 

### internal quotation marks 

### omitted). 

### "[A] prosecutor is 

### permitted 

### fairlywide 

### latitude in advocating 

### for the Commonwealth, including the 

### right to argue all 

### fair conclusions 

### from the evidence, to respond to defense 

### arguments, and to engage in a 

### certain degree of oratorical 

### flair." 

### Harris, 884 A.2d at 931. All such 

### comments must be reviewed in the 

### context in which

### theywere made. 

### Commonwealth v. 

### Robinson, 877A.2d 433, 441 (Pa. 

### 2005). Here, the record reflects 

### that ADA Busch's references to crime in Philadelphia were not the type of comments 

### that would cause the

### jury to 

### form a fixed bias or 

### hostilitytowardsappellant and 

### prevent it

### from rendering

a 

### fair and 

### impartial verdict. Rather, ADA Busch's 

### comments were a 

### fair response to 

### trial counsel's repeated 

### arguments 

### throughout trial bemoaning the lack 

### of

### fingerprint and DNA evidence presented by the Commonwealth. (See notes 

### of 

### testimony, 

### 9/23/09 at 

### 40-42; 

### 9/24/09 at 

### 135-137.) Accordingly, appellant's 

### trial counsel had no basis upon which to 

### object, and 

### appellant's underlying ineffectivenessclaim 

### mustfail. 

### See

### Commonwealth

v. 

### Rivera, 816 A.2d 282, 292 (Pa.Super. 2003) 

### (stating, "counsel will not be



## -8J. 

### S66040/18 considered 

### ineffective for failing to pursue 

### meritless 

### claims."), 

### appeal denied, 828A.2d 350 (Pa. 

### 2003). Appellant also contends

### that trial counsel was 

### ineffective for failing to 

### object to 

### comments ADA Busch made during her closing 

### argument 

### that referenced the 

### fact

### thatappellant

### fitthedescription ofthe assailant given by the

### victims at

### trial. (Appellant's brief at 10.) Specifically, ADA Busch stated

as

### follows: They may not be able to say it was 

### [appellant], but boy did 

### they get a good 

### description of him, 

### five-foot eight, darkcomplexion, wearing a purple

### T-shirtwith writing on it, a bandana on his head. We know 

### [appellant] a 

### month later had a black doo rag on. Late 30's, clean shaven, medium build, 

### athletic. May 15 

### of last 

### year 

### [appellant] looked 

### something a lot more like 

### this. Gray hair not

### veryvisible especially if it's covered, no beard. They 

### can't name him or but 

### [sic] 

### they can 

### tell you 

### exactly what he looks like and

### that'swhattheydid.

I guessthe defensewould haveyou believe, I guess, even

### though there's absolutely no evidence of

### this in the record, 

### that some man came in 

### at 

### 4:30 in the morning at 1211 South Juniper looking a heck 

### of a lot like 

### [appellant], same build, 

### height, skin color, something on his head, 

### terrorized them, took 

### their car, drovearound awhile, parked it.

. . .

. . . The evidence shows 

### that a man 

### that looks

### just like him broke into 

### that house, 

### took the keys, 

### took the car, 

### left his 

### prints, drove it 

### around, parked in his 

### hurry to escape a 

### violation home invasion 

### that he had

### justcommitted.

. . .

## -9J. 

### S66040/18 Notes of

### testimony,

### 9/24/09 at 146, 

### 151-152. Appellant contends 

### that these comments were the 

### equivalent of informing he 

### jury "that the complainants had successfully identified 

### [a]ppellant as the person who burglarized 

### their 

### home[,]" and 

### that the Commonwealth was precluded 

### from doing so because it had 

### stipulated atthe December 4, 2008 

### preliminary hearing 

### that the 

### victims could not 

### identify appellantas the 

### perpetrator. (Appellant's briefat

### vii, 11-15; 

### see

### also notes of

### testimony, 

### 12/4/08 at

### 4-6.) Upon review, we find 

### that appellant's claim 

### that trial counsel was 

### ineffective

### forfailing to

### object to ADA Busch's closing 

### argumenton this basis is 

### meritless. 

### It is well settled 

### that a 

### prosecutor is 

### permitted to argue reasonable and 

### legitimate inferences 

### from the 

### testimony presented at 

### trial. See 

### Chmiel, 777 A.2d at 466. 

### Contrary to 

### appellant's contention, neither 

### victim in 

### this case 

### specifically identified appellant as 

### their assailant at

### trial, but 

### merely described the physical 

### characteristics of 

### the individual who assaulted 

### them on the morning in question. Wife

### testified

### thatthe individual who broke into her home and assaulted her was between 

### 5'8" and 

### 5'9" in 

### height, had a 

### medium build, and a 

### dark complexion. (Notes of

### testimony, 

### 9/23/09 at 

### 79.) Likewise, Husband 

### testified 

### that Wife's assailant had an average, 

### athletic build, 

### dark skin, and was wearing a bandana and 

### "purplish" T-shirt. 

### (Id. at 

### 123-124.) ADA Busch's 

### comments during her 

### summation merely asked the

### jury to draw a reasonable inference 

### that appellant, who

- 10 -J. 

### S66040/18 matched the physical 

### description given by the 

### victims, was the individual who broke into 

### their home. 

### See 

### Chmiel, 777 A.2d at 466. These 

### comments were supported by the record and were 

### entirely proper. Accordingly, 

### trial counsel had no basis upon which to 

### object, and 

### appellant's ineffectiveness claim 

### must fail. 

### See 

### Rivera, 816 A.2d at 292 

### (stating, "counsel will not be considered 

### ineffective 

### for failing to pursue 

### meritless 

### claims[]"). In his final claim, 

### appellant argues 

### that appellate counsel were 

### ineffective

### forfailingto argue on 

### directappeal

### thatthe Commonwealth failed to 

### present 

### sufficient evidence to prove his 

### identity as the 

### perpetrator. (Appellant's briefat 16.) In 

### support ofthis contention, appellant avers

### that the only evidence linking him to 

### this crime was the 

### fingerprint evidence recovered 

### from inside the 

### victims' vehicle, "an 

### inherently movable 

### object," and

### thatthe Commonwealth 

### "failed to 

### eliminatethe 

### possibility

### that [he] had been in the car on a previous occasion.

. . 

### ." 

### (Id. at 

### xvi, 18-19.) Appellant maintains 

### that there were numerous 

### other explanations as to 

### why his 

### fingerprints were discovered inside the vehicle, including the fact 

### that he may have entered the vehicle to search 

### for valuables on 

### another occasion;
or

### that he may have entered thevehicle

### for some 

### otherpurpose in the hour it had been missing. 

### (Id. at 19.) 

### Appellant argues 

### that appellate counsel had no reasonable basis 

### for failing to pursue 

### this 

### particular argument on appeal. 

### (Id.) We disagree.J. 

### S66040/18 

### It is well settled 

### that "post-conviction relief claims alleging 

### that counsel had provided 

### ineffective assistance are 

### generally to be considered 

### distinct from the underlying claims 

### that the 

### trial court erred, even 

### though such 

### underlying claims of 

### error had been 

### litigated on 

### direct appeal." 

### Commonwealth v. 

### Kimbrough, 938 A.2d 

### 447, 450 (Pa.Super. 

### 2007); 

### Commonwealth v. 

### Collins, 888 A.2d 564, 

### 571-572 (Pa. 

### 2005). "As we made clear in 

### Collins, although we will analyze a 

### distinct claim of 

### ineffectiveness 

### that is based on the underlying issue decided on 

### direct appeal, in 

### many casesthose claimswill fail 

### for the same reasons 

### theyfailed

on 

### direct appeal." 

### Commonwealth v. 

### Washington, 927 A.2d 586, 607 (Pa. 

### 2007), citing

### Collins. Upon 

### review, we agree

### with the PCRA

### court

### that appellant's underlying sufficiency claim lacks arguable 

### merit, and 

### thus, appellant's ineffectiveness claim 

### must fail. The record reflects 

### that on 

### direct appeal, a panel of 

### this court held 

### thattherewas 

### sufficientevidence to sustain 

### appellant's conviction 

### for robbery of a 

### motor vehicle. 

### See 

### Bonner, 27 A.3d at 

### 257-258. Specifically,the

### Bonnercourtfound

### thatevidence established

### thatappellant took the 

### victim into the kitchen 

### with a knife at her 

### throat, repeatedly threatened to kill her 

### until she handed 

### over the keys to her car, and 

### ultimatelyfled 

### from the house in

### victim's car. 

### Id. at 258. As

### this court has 

### alreadyconcluded 

### thattherewas 

### sufficientevidence

### forthe

### juryto 

### infer

### that appellant was 

### the 

### perpetrator of the crimes in 

### question, any 

### alternative

- 12 -J. 

### S66040/18 argument to the 

### contrary would have also failed. As noted, 

### appellate counsel 

### cannot be deemed 

### ineffective for failing to raise a claim 

### that is devoid of 

### merit. See

### Ligons, 971 A.2d at 1146. Based on the 

### foregoing, we discern no 

### error on the part ofthe PCRA 

### court in dismissing 

### appellant's petition 

### without conducting an 

### evidentiary hearing. Order

### affirmed. Judgment Entered.

Joseph D. 

### Seletyn, Prothonotary Date: 

### 1/7/19

- 13 -